Authored By: Jennifer Cupples and David Mollicone The threshold question of whether a dispute is subject to arbitration is generally a matter for a court to determine by considering the reach of the parties’ agreement. In a recent opinion by Justice Cavanagh, joined by Chief Justice McCormack and Justices Bernstein and Clement, the Michigan Supreme Court in Lichon v Michael Morse, et...
Authored By: Matthew Smith and Kenneth Neuman Shareholder and member oppression claims are commonly referred to as “minority” oppression claims. This labeling is so prevalent that it has found its way into opinions authored by both the Michigan Supreme Court and Michigan Court of Appeals. (For example, see Madugula v. Taub, 496 Mich. 685, 695 (2014); Franchino v. Franchino, 263 Mich....
Authored By: Jennifer Cupples and Jennifer Grieco Threshold issues of arbitrability are generally resolved by a court determining whether the parties agreed to arbitrate the dispute. However, with contracts evidencing a transaction involving commerce, the Federal Arbitration Act, Title 9, U.S. Code (“FAA”) allows parties to agree that the arbitrator determine questions of...
Authored by: Stephen T. McKenney The Michigan Limited Liability Company Act will celebrate its twenty-eighth anniversary on June 1, 2021. But despite its age and popularity, the Michigan Court Rules have never expressly provided the manner in which limited liability companies are to be served with legal process. This will change effective May 1, 2021, with the Michigan Supreme Court’s...
Authored By: Matthew Smith and Stephen McKenney Choice of law and forum-selection provisions are common inclusions in all manner of contracts. Most of these provisions rarely register a second thought even in contentious litigation. But what happens when the enforceability of a forum-selection clause differs under the laws of the State in which litigation is filed, from the laws of the...
Authored By: Jennifer Cupples and Jennifer Grieco Michigan attorneys should already know that Michigan Rule of Professional Conduct (“MRPC”) 1.8(h)(1) prohibits a lawyer from making an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. But what, if any, effect...
Authored By: Kenneth Neuman and Matthew Smith That Sixth Circuit law favors arbitration is not newsworthy. A string of cases could be unearthed with just a few minutes of research in which federal courts throughout the Sixth Circuit have echoed the strong presumption in favor of arbitration. But there are limits to the presumptions that tilt in favor of arbitration when its...
The Michigan Supreme Court recently issued Administrative Order No. 2020-23, adopting twelve Principles of Professionalism for both lawyers and judges. The Principles of Professionalism were the product of the Professionalism Workgroup that was formed during Jennifer Grieco’s tenure as President of the State Bar of Michigan. The Workgroup, chaired by SBM Past-President Ed...
Authored By: Jennifer Grieco and Stephen McKenney We have all seen it. We have all, probably, done it. We are answering a complaint on behalf of our client, and we need to plead affirmative defenses. We are all keenly aware of the requirement in MCR 2.111(F) that a “defense not asserted in the responsive pleading or by motion as provided in these rules is...
Authored By: Kenneth Neuman and Stephen McKenney One of the common types of restrictive covenants that Michigan courts have held are enforceable in employment (and other) contracts are so-called “non-solicitation” covenants. Typically, non-solicitation covenants prohibit an employee (or shareholder, member, director) of a company from soliciting any of the company’s customers (or...
